Tag: Mr. Justice Anthony Kennedy

On June 8, 2015, the U.S. Supreme Court, 6 to 3, decided that the U.S. President had the exclusive power in the U.S. Government to recognize foreign nations and governments. The Court, therefore, declared unconstitutional an Act of Congress that allowed U.S. citizens born in Jerusalem to have their U.S. passports identify Israel as their birthplace. (Zivotofsky v. Kerry, No. 13-628.)

This decision has major implications for the ongoing Obama Administration to normalize relations with Cuba with respect to existing law as well as current congressional Republican efforts to halt or hinder that normalization.

Zivotofsky v. Kerry

The Facts

Since the U.S. official recognition of the State of Israel in 1948, every U.S. president consistently has not acknowledged any country’s sovereignty over Jerusalem. Instead, the Executive Branch has maintained that “‘the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned.’” Moreover, this issue of sovereignty is of great sensitivity in Arab-Israeli relations and negotiations. Therefore, the consistent policy and practice of the U.S. Department of State has been

to record the place of birth on a U.S. passport as the “country [having] present sovereignty over the actual area of birth” and to record the place of birth for citizens born in Jerusalem as “Jerusalem.”

In 2002, Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003,116 Stat. 1350. Section 214 of the Act is titled “United States Policy with Respect to Jerusalem as the Capital of Israel,” and its subsection (d) allows U.S. citizens born in Jerusalem to list their place of birth as “Israel.”

When President George W. Bush signed the Act, he issued a statement declaring that section 214 would, “if construed as mandatory rather than advisory, impermissibly interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.” Therefore, since then the State Department has not changed the previously described policy and practice regarding U.S. passports, the statute would not be honored.

When the State Department rejected the request on behalf of U.S. citizen Menachem Binyamin Zivotofsky, who was born in Jerusalem, to have his passport designate Israel as his birthplace, his guardians sued to enforce Section 214. Thus, the issue for the Supreme Court was whether Section 214 was constitutional.[1]

The opinion of the Court by Justice Anthony Kennedy acknowledged the international sensitivity of the issue. It said, “A delicate subject lies in the background of this case. That subject is Jerusalem. Questions touching upon the history of the ancient city and its present legal and international status are among the most difficult and complex in international affairs.” Moreover, “Jerusalem’s political standing has long been, and remains, one of the most sensitive issues in American foreign policy, and indeed it is one of the most delicate issues in current international affairs.”

The opinion then started with key constitutional provisions regarding foreign affairs. The key was Article II, Section 3 of the U.S. Constitution, which directs that the President “shall receive Ambassadors and other public Ministers.” After consulting the writings of international legal scholars at the time of the drafting of the Constitution, the Court concluded that it is “a logical and proper inference, then, that a Clause directing the President alone to receive ambassadors would be understood to acknowledge his power to recognize other nations.” This conclusion also was supported by the President’s other constitutional powers to make treaties, by and with the Advice and Consent of two-thirds of two-thirds of the Senators present (Art. II, §2, cl. 2.) and the power to “nominate, and by and with the Advice and Consent of the Senate, . . . [to] appoint Ambassadors” as well as “other public Ministers and Consuls.”

These provisions and other considerations led the Court to conclude that “the text and structure of the Constitution grant the President the power to recognize foreign nations and governments” and that this power is exclusively the President’s. “Put simply, the Nation must have a single policy regarding which governments are legitimate in the eyes of the United States and which are not. Foreign countries need to know, before entering into diplomatic relations or commerce with the United States, whether their ambassadors will be received; whether their officials will be immune from suit in federal court; and whether they may initiate lawsuits here to vindicate their rights. These assurances cannot be equivocal.”

Nevertheless, the Court said in dicta, “many decisions affecting foreign relations—including decisions that may determine the course of our relations with recognized countries— require congressional action. Congress may ‘regulate Commerce with foreign Nations,’ ‘establish an uniform Rule of Naturalization,’ ‘define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,’ ‘declare War,’ ‘grant Letters of Marque and Reprisal,’ and ‘make Rules for the Government and Regulation of the land and naval Forces.’” (U. S. Const., Art. I, §8.) “In addition, the President cannot make a treaty or appoint an ambassador without the approval of the Senate.” (Art. II, §2, cl. 2.) “The President, furthermore, could not build an American Embassy abroad without congressional appropriation of the necessary funds.” (Art. I, §8, cl. 1.) (Emphasis added.) [3] Under basic separation-of-powers principles, it is for the Congress to enact the laws, including ‘all Laws which shall be necessary and proper for carrying into Execution’ the powers of the Federal Government.”(§8, cl. 18)

This point about congressional power was underscored by the Court when it said “it is essential the congressional role in foreign affairs be understood and respected. For it is Congress that makes laws, and in countless ways its laws will and should shape the Nation’s course. The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue. It is not for the President alone to determine the whole content of the Nation’s foreign policy.” (Citations omitted.)

Reactions to the Court’s Decision

The White House Press Secretary, Josh Earnest, released a statement embracing the decision as it “reaffirms the long-established authority of the President to recognize foreign states, their governments, and their territorial boundaries” and “upholds the President’s long-standing authority to make these sensitive recognition determinations as part of his conduct of diplomacy and foreign policy.”

Alan Morrison, the Lerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School and the author of an amicus brief in the case in support of the Zivotofsky family, saw possible implications of the case for the current conflicts over Cuba policy between President Obama and the Republican-controlled Congress. Morrison said, President Obama “might announce that he has recognized the Castro-led Cuban government, with no worry about an effort of Congress to override him.” Congress, on the other hand, “might decide to up the ante by . . . using the power of the purse, especially as part of a bill that the president must sign to keep the government from shutting down.”[4]

Indeed, the Center for Democracy in the Americas asserts that this decision invalidates a major portion of the Helms-Burton Act, which “arrogates to the Congress a lot of authority for determining when – and under what circumstances – the United States can resume normal relations [with Cuba]. The law says . . . [only] when the government in Cuba fits the definition of a government in transition or a democratically-elected government can the President recognize Cuba, trade with Cuba, negotiate with Cuba over Guantanamo, allow Cuba to enter the World Bank or other financial institutions, etc.”[5]

In addition, at least three pending bills in Congress would appear to be unconstitutional under this recent Supreme Court decision as they would impose congressional preconditions to a presidential normalization and re-establishment of diplomatic relations: H.R.1782 (Cuba ceasing to violate human rights of its citizens), H.R.2466 and S.1388 (Administration plan for resolving all U.S. claims for property expropriated by Cuba).[6]

There also is at least one pending bill that would bar use of appropriated funds to construct a U.S. Embassy in Havana or expand the present facility housing the U.S. Interests Section there; that is the Department of State’s Appropriations Act FY 2016 that is still before the House Appropriations Committee.[7] That certainly would inhibit the operation of such a facility, but the Court in dicta in Zivotofsky said, ““The President, furthermore, could not build an American Embassy abroad without congressional appropriation of the necessary funds.” (Emphasis added.) Thus, this pending bill would seem to be within Congress’ prerogative, but the Administration always could make a request for a supplemental appropriation to convert the building to an embassy.

There are many bills imposing restrictions on U.S. changes affecting the prison or detention facility at Guantanamo Bay Cuba that, in my opinion, unnecessarily would limit the Administration’s desire to close that facility as well as its discussions with Cuba about the lease of that territory to the U.S., but would not run afoul of the Zvotofsky decision. In the House they are H.R.240, H.R. 401, H.R.654, H.R.1689, H.R.1735, H.R.2029, H.R.2578 and H.R.2685; in the Senate, S.165, S.778 and S.1376.[8]

Other pending bills similarly would impede reconciliation, but would not be barred by the Zvotofsky case. They are H.R.2323 (maintain Ratio and TV Marti), H.R.2577 (ban travel to Cuba on or over expropriated U.S. property), H.R.2578 (no exports to Cuban military and intelligence personnel and their families) and Department of Treasury Appropriations Act FY 2016 pending in the House Appropriations Committee (no imports of expropriated property and no financial transactions with Cuban military personnel).

Conclusion

Maybe this legal discussion is beside the point.

There are reports that the U.S. and Cuba by early July will re-establish diplomatic relations, and on June 13, Senator Jeff Flake (Rep., AZ) predicted the opening of both a Cuban embassy in Washington and a U.S. embassy in Havana will occur in the very near future. “Nothing has been set, but it’s imminent,” he said. Flake’s comments were made just after a meeting in Havana with Cuba’s Foreign Minister Bruno Rodriguez Parrilla, Josafina Vidal, Cuba’s lead negotiator with the U.S., and Cuba’s First Vice President Miguel Diaz Canel. [9]

If this happens, any new legislation to impose preconditions to recognition would be moot and litigation over the constitutional issue would take years to resolve. In any event, however, the Zvotofsky decision bolsters the Obama Administration’s pursuit of normalization and reconciliation with Cuba.

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[1] The case originally was dismissed by the district court on the grounds that the petitioner lacked standing and that the case presented a nonjusticiable political question. The court of appeals affirmed on the political question ground while reversing on the standing ground. The Supreme Court granted certiorari, vacated the judgment and remanded for the circuit court to decide whether the statute was constitutional. Upon remand the circuit court decided that the statute was unconstitutional, which was affirmed by the Supreme Court in this recent decision..

[2] Mr. Justice Thomas filed a separate opinion, concurring in part and dissenting in part. Chief Justice Roberts filed a separate dissenting opinion, and he along with Mr. Justice Alito joined the dissenting opinion of Mr. Justice Scalia. Analysis of these opinions will be left to others. The opinion of the Court and these other opinions are briefly discussed in Liptak, Supreme Court Backs White House on Jerusalem Passport Dispute, N.Y. Times (June 8, 2015).

[3] On commentator saw the highlighted mention of congressional power to withhold funds for building an embassy as a reference to a possible future congressional refusal to appropriate funds to convert the U.S. Interests Section in Havana to a U.S. Embassy.